NSA Panel Member Recommends Increased Data Collection

By Michael Hirsh

December 23, 2013

Michael Morell, the former acting director of the CIA and a member of President Obama's task force on surveillance, said in an interview on Sunday that a controversial telephone data-collection program conducted by the National Security Agency should be expanded to include emails. He also said the program, far from being unnecessary, could prevent the next 9/11.

Morell, seeking to correct any misperception that the presidential panel had called for a radical curtailment of NSA programs, said he is in favor of restarting a program that the NSA discontinued in 2011 that involved the collection of "meta-data" for Internet communications. That program only gets a brief mention in a footnote on page 97 of the task-force report, "Liberty and Security in A Changing World." "I would argue actually that the email data is probably more valuable than the telephony data," Morell told National Journal in a telephone interview. "You can bet that the last thing a smart terrorist is going to do right now is call someone in the United States."

Morell also said that while he agreed with the report's conclusion that the telephone data program, conducted under Section 215 of the Patriot Act, made "only a modest contribution to the nation's security" so far, it should be continued under the new safeguards recommended by the panel. "I would argue that what effectiveness we have seen to date is totally irrelevant to how effective it might be in the future," he said. "This program, 215, has the ability to stop the next 9/11 and if you added emails in there it would make it even more effective. Had it been in place in 2000 and 2001, I think that probably 9/11 would not have happened."

The presidential panel's 304-page report touched off a fresh backlash against NSA surveillance programs, coming only days after a U.S. District judge, Richard Leon, ruled that the agency's regular collection of most Americans' phone records was probably unconstitutional. The panel, which consisted of Morell, former counterterrorism advisor Richard A. Clarke, University of Chicago law professor Geoffrey Stone, Peter Swire, an expert in privacy law at the Georgia Institute of Technology, and former Obama administration regulation czar Cass Sunstein, concluded that the Section 215 program needed to be substantially reined in. It said that the telephone meta-data collection—involving the tracking of numbers of calls and where, when and to whom they're made, without examining content—should be taken out of the hands of the government and left to the service providers, or to a private "third party," and subjected to individual court orders.

"Although this process might be less efficient for the government, NSA Director General Keith Alexander informed the Review Group that NSA itself has seriously considered moving to a model in which the data are held by the private sector," the report said.

But Morell emphasized in a separate appearance on CBS's "Face the Nation" on Sunday that these procedures would slow down necessary data collection only by a few days, and that the panel has called for an emergency exception that would allow the NSA to occasionally bypass a Foreign Intelligence Surveillance Court judge.

The task-force report also delivered an enthusiastic endorsement of another email collection program under Section 702 of the Foreign Intelligence Surveillance Act, which allows the monitoring of suspicious emails abroad. After the panel reviewed 54 counter-terrorism investigations since 2007 "that resulted in the prevention of terrorist attacks in diverse nations and the United States," it concluded that "in all but one of these cases, information obtained under section 702 contributed in some degree to the success of the investigation."

The discontinued program for collecting meta-data on internet communications that Morell was referring to was originally suspended for "compliance" issues in 2009, the report notes, after "it came to light that NSA had inadvertently been collecting certain types of information that were not consistent with the FISC's authorization orders." Alexander re-started that program in 2010 but then let it expire at the end of 2011 because "for operational and technical reasons, the program was insufficiently productive to justify the cost," the report says, adding that "the possibility of revising and re-instituting such a program was left open." The report says that if the email meta-data program is started up again, it "should be governed by the same recommendations we make with respect to the section 215 program."

Morell and other intelligence experts believe that the new and varied threats from extremist and al-Qaida-linked groups from Syria to the ungoverned areas of Afghanistan justify continuing such mass surveillance programs.